introduced in evidence, Engel, the plaintiff, [ fourteenth exceptions were taken are the never went upon the stand to show that he was an innocent purchaser of the note without knowledge of such facts, and never testified at all until called by the defendant, and then only to the extent of saying that, of the amount given to Pressler for said note, $2,850 was borrowed by him from Jacob I. Goldstein. In our opinion the court correctly ruled upon the special exception to the prayer, and the prayer in our opinion correctly stated the law applicable to the facts of the case. 8 G. J. p. 246, § 385, and page 249, § 391, and notes. Adams v. Adams, 25 Minn. 72; Sayles v. Sayles, 21 N. H. 312, 53 Am. Dec. 208; Stoutenberg v. Lybrand, 13 Ohio St. 228; Emerson v. Townsend, 73 Md. 224, 20 Atl. 984; Beard v. Beard, 65 Cal. 354, 4 Pac. 229; Everhart v. Puckett, 73 Ind. 409; Hamilton v. Hamilton, 89 Ill. 349; 13 C. J. 464, and cases therein cited. We likewise find no error in the court's ruling upon the defendant's third prayer, by which the jury were instructed that unless they found Schloss signed the note sued upon in this case they must find for the de fendant. The defendant's fifth prayer contains a correct statement of law; and, should it for any reason be thought objectionable, we fail to discover upon the facts disclosed by the evidence how it in any way injured the plaintiff. The first four exceptions are to the admission of a like number of letters written by usual questions asked of an impeaching witness, if he knows the general reputation of the witness for truth and veracity in the community in which he lives. The proper foundation had been laid, and we can conceive of no ground for objection to such questions. [10] The court was also in our opinion, correct in its rulings upon the thirteenth and fourteenth exceptions. The exceptions 15 to 24, inclusive, were to certain testimony of one John J. Caplin admitted upon the offer of the defendant to follow it up by showing that, not only Goldstein, from whom Engle borrowed a part of the money with which he says he purchased the note from Pressler, knew before the purchase was made that Schloss had repudiated the note, claiming it was a forgery, but that Engle also knew of such fact. Upon the offer so made the court we think acted properly in admitting said testimony, and if in the opinion of the plaintiff the defendant failed to show that Engle had knowledge of such fact, then the plaintiff should have asked the court to exclude the objectionable testimony from the consideration of the jury if he wished to avail himself of the objection previously made, and this he did not do. 2 Poe, 296A. The twenty-fifth, twenty-sixth, and twentyseventh exceptions are to similar testimony of Adolph B. Hirschman, which we understand from the record was admitted upon the above-stated offer of the defendant, and Lippe, a witness for the plaintiff; the first which the plaintiff did not ask to be excludto the counsel of the defendant and the oth-ed from the consideration of the jury, but ers to Mrs. Pressler. These letters were ad mitted in the cross-examination of Lippe, and were, we think, properly admitted for the limited purpose of showing the relation of the parties. The fifth, sixth, seventh, and eighth exceptions were to questions asked Pressler as to the disposition of the money that he said was paid him by Engel for the note. These were proper questions in cross-examination following the disclosures made by him in his examination in chief, but, whatever may be said of such questions, the answers thereto did in no way harm the plaintiff. The evidence admitted on the ninth exception was likewise properly admitted, and we find no reversible error in the ruling of the court upon the tenth exception. The questions to which the eleventh and think that the admission of such evidence, if if wrong in this understanding we do not error at all, should be regarded as a reversible error, in view of the evidence in the record, admitted without objection. Nor do we find any error in the ruling of the court upon the twenty-eighth exception. The exception is to the question and not to the answer; and, while the question is not in all respects as full and complete as it should be, we do not think the court in permitting it to be asked committed a reversible error, and we also find no reversible error in the court's ruling upon the twenty-ninth and thirtieth exceptions. And as we find no reversible errors in the rulings of the court the judgment will be affirmed. Judgment affirmed, with costs. (134 Md. 85) URNER, J. The appellant was an indorsJENKINS v. NATIONAL BANK OF BAL- er before delivery of three promissory notes TIMORE. (No. 71.) of the Jenkins Provision Company for $5,(Court of Appeals of Maryland. Feb. 13, 1919.) ed in blank by the company for discount by 000 each, payable to "ourselves" and indors1. BILLS AND NOTES 64-CONDITIONAL the National Bank of Baltimore. In a suit DELIVERY. by the bank against the appellant as indorser of the notes, after default in payment at their maturity, the defense sought to be interposed, by proffers of parol proof which the trial court rejected, was that the appellant, who was president of the Jenkins Provision Company, became an indorser individually upon certain notes of the company, of which those sued on are renewals, and furnished a collateral guaranty thereof by his wife, under an agreement with the bank that before accepting the notes or any renewals thereof it would procure also the individual indorsement thereon of J. Herbert Cromwell, who was interested in the borrowing company and served as its treasurer, 3. BILLS AND NOTES 138- CONDITIONAL but that, while the first two notes discounted DELIVERY "RENEWALS." Notes given after maturity of other notes, which were paid by check drawn against proceeds of the new notes, by which a loan was to be carried through another discount period, were "renewals" within an agreement whereby payee agreed with an indorser on old notes that it would not accept and discount such old notes or renewals thereof until it had secured an indorsement by a certain other person. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Renewals.] after the agreement were indorsed by both J. Herbert Cromwell and the appellant, the bank failed to obtain the indorsement of Mr. Cromwell on subsequent renewal notes, thereby violating the condition upon which the appellant indorsed the notes and agreed to their delivery, and that he did not know of the failure of the bank to have Mr. Cromwell indorse the later renewals until after the company was placed in the hands of receivers, the renewal notes having in every instance been taken by Mr. Cromwell him 4. BILLS AND NOTES 64-CONDITIONAL self to the bank. This theory of conditional DELIVERY. Where a bank agreed that it would not discount notes, or renewals thereof, unless indorsed by a certain other person, it was no defense that notes alleged to have been conditionally delivered were accepted and renewed by bank for several succeeding periods without additional in dorsement being procured, where indorser was unaware until after last of notes was given that bank had not complied with such condition. 5. PLEADING ~194(4)—DEMURRER TO PLEAUNNECESSARY MATTER. There was no error in sustaining demurrer on a plea, where the defense it set forth was available under the general issue. Appeal from Circuit Court, Baltimore County; Wm. H. Harlan, Judge. Action by the National Bank of Baltimore against Frank B. Jenkins. From an adverse judgment, defendant appeals. Reversed, and new trial awarded. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ. Elmer J. Cook, of Towson, and John L. G. Lee, of Baltimore, for appellant. delivery was likewise set forth in a special plea, to which a demurrer was filed and sustained, and by a prayer, which was necessarily refused in view of the exclusion of the evidence by which it might have been supported. Judgment was recovered by the bank, on the verdict of a jury, for the amount of the three notes and interest after a payment of $1,854.40 out of the assets of the company had been credited. [1] The Negotiable Instruments Act provides that as between the immediate parties, or against one not holding in due course, the delivery of a negotiable instrument may be shown to have been conditional. Code, art. 13, § 35. Long prior to that enactment it had been held by this court to be "competent for a defendant to show by parol that a promissory note, on which he is sued as indorser, was delivered as an escrow, or that it was delivered to the plaintiff to be held upon a condition to be performed before the interest of the holder could attach." Ricketts v. Pendleton, 14 Md. 329; Hamburger v. Miller, 48 Md. 326. In 8 Corpus Juris, 206, it is said: "Instruments delivered on condition are, as T. Scott Offutt, of Towson, and John Hink- between the immediate parties, invalid until the ley, of Baltimore, for appellee. happening of the event on which the inception rect liability on his indorsement would not have been affected. The additional indorsement was actually procured for the first two notes discounted after the agreement pro of the instrument is made to depend. Thus where a note is delivered under an agreement that it is not to become binding until signed by another person, the failure to obtain such additional signature precludes a recovery as between the original parties or transferees who have no-posed to be proven, and in each of those intice of the agreement." Numerous cases applying this principle are cited in a note to the statement just quoted. In 3 Ruling Case Law, p. 862, the deci sions are said to be "harmonious on the proposition that except as against a holder in due course, parol evidence is admissible to show that a negotiable instrument was delivered subject to a condition, and that by reason of the failure to perform or comply with the condition the instrument never became a completed contract in præsenti." The proposal in this case was to prove in effect that the defendant indorsed the notes upon the express condition, which the bank agreed to, but failed to perform, that another designated indorser should be procured by the bank before the notes were accepted for discount. This clearly constituted a conditional delivery so far as the defendant was concerned, and the settled rule to which we have referred must be applied to the case unless one or more of the reasons urged to the contrary in the argument should be found to be valid. [2] It is contended that the form of the notes when they left the defendant's hands stances the other indorsement was above the defendant's. It was apparently the theory of his proffer of testimony that the two indorsements were to be treated as simultane. ous and as creating a joint, equal, and contributing liability, and we are unable to hold upon this record that such would not have been the case, or that the procurement of the other indorser would not have operated in any way to the defendant's advantage. [3] The further point is made that the notes sued on are not renewals of those to which the alleged conditional delivery refers, and are therefore not subject to its terms. This theory relies upon the fact that after the maturity of each successive note in the several series, it was paid by check drawn against the proceeds of the new note by which the loan was to be carried through another discount period. In reference to this point it is sufficient to say that the process just described was evidently that which the alleged agreement characterized as a renew al of the notes, and to which the condition it imposed was intended to apply. [4] While the notes alleged to have been conditionally delivered were accepted and renewed by the bank for several succeeding periods without the additional indorsement being procured, the proffered evidence could not properly be excluded on that ground, in view of the defendant's offer to prove and account for the fact that he was unaware until after the last of the notes was given that the bank had not complied with the condition upon which they were agreed to be delivered and accepted. [5] There was no error in the ruling on the demurrer to the fourth plea, because the defense it set forth was available un precluded any expectation that Cromwell was to add his indorsement. The notes then bore the indorsement of the defendant, Frank B. Jenkins, followed by that of the Jenkins Provision Company. It is said that in view of the fact and order of these indorsements the defendant could not have contemplated and depended upon the procurement by the bank of another indorsement ahead of his own on the notes, and that, even if such an indorsement had been procured, it would not have reduced the de-der the general issue (Morgan v. Cleaver, fendant's liability as the earlier indorser. These considerations are not sufficient to exempt the case from the rule relating to the conditional delivery of negotiable instruments. If the bank in fact agreed with the defendant that it would not accept and discount the notes in suit until it had secured the other stipulated indorsement, it cannot, under the circumstances, excuse its failure to fulfill that condition on the ground that the defendant could not reasonably have expected its performance, or that his own di 130 Md. 621, 101 Atl. 610; Kerr, Evans Co. v. Improvement Co., 129 Md. 473, 99 Atl. 708), and the rulings on the prayers were also correct, when considered in reference to the evidence which was admitted, but the judgment will be reversed, and the cause remanded for a new trial, because of error in the rejection of the proffer to prove the conditional delivery of the notes which are the subject of the suit. Judgment reversed, with costs, and new trial awarded. (134 Md. 48) LEVERING et al. v. WILLIAMS et al., (Court of Appeals of Maryland. Feb. 13, 1919.) 1. MUNICIPAL CORPORATIONS 111(1)-VA- 2. MUNICIPAL CORPORATIONS ~592(4)— A city ordinance forbidding baseball and other games on Sunday unless no admission fee is charged is void as being in contravention of Code Pub. Gen. Laws, art. 27, §§ 436-438, prohibiting work or bodily labor on Sunday, relating to the observance of Sunday. 3. MANDAMUS 23(2) TO SUE-TAXPAYERS. Citizens and taxpayers may bring an action for mandamus to compel park officials to comply with law without the intervention of a government officer. 'Sabbath,' be and the same is hereby repealed and reordained so as to read as follows: "Sec. 3. (A) Every person who shall fish or hunt or who shall play ball or any other game whatsoever on the Sabbath day, commonly called Sunday, within the limits of Baltimore city, except as hereinafter authorized, shall for each offense pay a fine of one dollar; and every ordinary or public garden keeper who shall suffer or allow in or upon his premises any kind of gaming or sport on the Sabbath day, shall for every individual so permitted to offend, pay ten dollars. "(B) Nothing in this ordinance, however, shall be construed as prohibiting or penalizing the playing in the public parks, private parks on the grounds of organized or incorporated clubs and on open lots on Sunday of the games, of baseball, golf, lawn tennis, croquet, basketball, football, lacrosse, quoits, soccer and field and track exercises; provided that any of the games enumerated in this paragraph (B) are played on Sunday between the hours of 2 p. m. and 7 p. m.; and provided further that such games are played in neighborhoods where they shall not cause a disturbance of the public peace; and provided that such games shall not be played within one hundred (100) yards of any place of worship where services are being held; and 4. MUNICIPAL CORPORATIONS 592(1)-Po- provided further that no admission fee whatLICE POWER-VALIDITY OF REGULATIONS-soever to such games shall be charged. CONFLICT WITH STATUTE. PARTIES ENTITLED A charter giving park commissioners power to make regulations for the preservation of order within parks does not authorize a regulation contrary to the state law. Appeal from Superior Court of Baltimore City; Walter I. Dawkins, Judge. "To be officially reported." Mandamus proceedings by Joshua Levering and others against George Weems Williams and others, constituting the Board of Park Commissioners. From an order overruling petitioners' demurrer and a judgment in favor of defendants, petitioners appeal. Reversed and remanded. "In the event a person violates any of the aforesaid provisions of this paragraph (B) he shall be deemed guilty of a misdemeanor, and for each and every offense thereof, he shall be subject to a fine of from five to five hundred dollars, the said fine to be collected as other fines are. "(C) And nothing in this ordinance shall be construed as prohibiting or penalizing the playing of any games of golf, lawn tennis, croquet or quoits at any time on Sunday, provided such games be played on private grounds with the consent of the owner or custodian of such grounds, and for exercise or recreation only, and that not more than four persons play together in such game, and that such game be not played within one hundred yards of any place of worship where services are being held, and be not so played as to cause a disturbance of the public peace, and that no person who may be permitted to see such a game be charged any fee for such privilege; the meaning of the words 'private grounds,' as herein used, beIsaac Lobe Straus, of Baltimore, for ap-ing grounds which are privately owned as dispellants. Argued before BOYD, C. J., and BURKE, THOMAS, URNER, STOCKBRIDGE, and CONSTABLE, JJ. George R. Gaither and Oscar Leser, both of Baltimore (Robert F. Leach, Jr., Asst. City Solicitor, and Eli Frank, both of Baltimore, on the brief), for appellees. THOMAS, J. On the 25th of May, 1918, the mayor and city council of Baltimore passed the following ordinance, known as Ordinance No. 353, and entitled: "An ordinance to repeal and reordain with tinguished from grounds which are publicly owned or which have been dedicated to public use. "Section 2. And be it further ordained, that this ordinance shall take effect from the date of its passage." Thereafter, on the 30th of May, 1918, the board of park commissioners of Baltimore city passed the following resolution or regulation in reference to the playing of athletic games in the public parks of Baltimore city on Sunday: "Resolved, that such athletic games as are permitted to be played in the public parks of Baltimore city on week days, shall be permitted to be played on Sundays between the hours of | pressly authorizing the mayor and city coun2 and 7 p. m." On the 1st of June, 1918, Joshua Levering, John T. Stone, and Rev. William W. Davis, constituting a committee of the Lord's Day Alliance, a body corporate, and as individuals and taxpayers of Baltimore city, together with several other taxpayers of Balti more city, filed a petition in the superior court of Baltimore city against George Weems Williams, George Washington Williams, J. Cookman Boyd, and Edward Hanlon, constituting the board of park commissioners of Baltimore city, alleging, among other things, that said ordinance and resolution are illegal and void because they contravene the "general laws of the state of Maryland relating to the observance of the Lord's Day commonly called Sunday, as a day of rest and worship," as codified in article 27, §§ 436-438, of Bagby's Code of Public General Laws of Maryland, and praying for a writ of mandamus "directed to" the said board of park commissioners, and each of the members thereof, "preventing and restraining them and it from giving effect to, permitting, or directing the carrying out, execution, or effectuation of said alleged Ordinance No. 353 aforesaid, and said resolution, order, and regulation in said parks of Baltimore city upon or during the Sabbath day or Lord's Day, commonly called Sunday, at any time hereafter, and preventing and restraining them from permitting, authorizing, or directing the holding, carrying on, or taking place of any of the said games, sports, and athletic contests and exercises, aforesaid, in said parks on the Sabbath day or the Lord's Day, commonly called Sunday, at any time hereafter, and commanding and requiring them fully and in all respects to observe, abide by, and give effect to the said sections 436-438 of article 27 of the Annotated Code of Maryland of 1914 edited by George T. Bagby, Esq., in said parks upon said Sabbath day or Lord's Day, hereafter, without regard to the provisions of said alleged Ordinance No. 353 or any of the provisions thereof, and ordering such other and further relief as may be proper in the premises." The defendants answered the petition, admitting the passage of said ordinance and resolution, and alleging that the ordinance and resolution are valid, and that the games and privileges thereby permitted "will not in any manner interfere with the proper observance of Sunday as a day of rest and worship." The petitioners demurred to the answer, and this appeal is from the order of the court below overruling the demurrer, and from the judgment in favor of the defendants. There is no provision in the charter ex106 A.-12 cil of Baltimore to pass the ordinance in question, but section 6 of the charter (Act of 1898, c. 123) declares that the mayor and city council of Baltimore shall "have and exercise within the limits of the city of Baltimore all the power commonly known as the police power to the same extent as the state has or could exercise said power within said limits." In the case of Rossberg v. State, 111 Md. 394, 74 Atl. 581, 134 Am. St. Rep. 626, Judge Pearce, speaking for this court, after referring to the broad and comprehensive police powers conferred upon the city, and dealing with the contention of the appellant that the ordinance in question in that case was invalid because it was inconsistent with the law of the state, said: "But all the text-writers already cited herein unite in declaring that further and additional penalties may be imposed by ordinance, without creating inconsistency. The true doctrine, in our opinion, is concisely stated in 28 Cyc. 701, as follows: 'Such ordinances must not directly or indirectly contravene the general law. Hence ordinances which assume directly or indirectly to permit acts or occupations which the state statutes prohibit, or to prohibit acts permitted by statute or Constitution, are under the familiar rule for validity of ordinances uniformly declared to be null and void. Additional regulation by the ordinance does not render it void.'" * In Hiller v. State, 124 Md. 385, 92 Atl. 842, Judge Burke said that the ordinance then in force in Baltimore city, and which prohibited the playing of baseball on Sunday, "was passed in the legitimate exercise of the police power," conferred upon the city, and it follows, under the rule clearly and explicitly stated in Rossberg v. State, supra, that, if the ordinance now in question "assumes directly or indirectly to permit acts or occupations which" the statutes of this state prohibit, it is null and void. [1] And in passing upon the validity of the ordinance we are to be controlled by what acts may be done under its authority. In the case of Ulman v. Baltimore, 72 Md. 587, 20 Atl. 141, 11 L. R. A. 224, the court said: "It matters not, upon the question of the constitutionality of such a law, that the assessment has in fact been fairly apportioned. The constitutional validity of law is to be tested, not by what has been done under it, but by what may by its authority be done," and the same tests must be applied to ordinances. Hagerstown v. B. & O. R. R. Co., 107 Md. 178, 68 Atl. 490, 126 Am. St. Rep. 382; Curtis v. Mactier, 115 Md. 386, 80 Atl. 1066; and Johns Hopkins Bldg. Co. v. Balto., 130 Md. 286, 100 Atl. 298. Section 436 of article 27 of Bagby's Code of the Public General Laws of the State (volume 3) declares that |